Notash v. Gonzales

• Citation: 427 F.3d 693
• Decision Date: 02 November 2005
• Docket Number: No. 03-72116.,03-72116.
• Parties: Kykhosro NOTASH, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

427 F.3d 693

Kykhosro NOTASH, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-72116.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 10, 2005.

Filed November 2, 2005.

Dorothea P. Kraeger, Phoenix, AZ, for the petitioner.^**

Regina Byrd, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A46-115-800.

Before: NOONAN, TASHIMA, and CALLAHAN, Circuit Judges.

TASHIMA, Circuit Judge.

Kykhosro Notash, a native and citizen of Iran, petitions for review of a decision of the Board of Immigration Appeals ("BIA"), affirming without opinion the decision of the Immigration Judge ("IJ"). The IJ concluded that Notash's conviction for attempted entry of goods by means of a false statement, in violation of 18 U.S.C. § 542, constituted a crime of moral turpitude for purposes of Immigration and Nationality Act ("INA") § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i). The IJ consequently found Notash removable, but granted voluntary departure in lieu of removal pursuant to INA § 240B, 8 U.S.C. § 1229c. For the reasons explained below, we grant the petition.

BACKGROUND

Notash was admitted to the United States in October 1997. The Notice to Appear charged that Notash committed the offense of attempted entry of goods by means of a false statement, in violation of 18 U.S.C. § 542.¹ Notash conceded the conviction. His sole contention is that the conviction was not for a crime involving moral turpitude; therefore, that the conviction did not render him deportable pursuant to INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).

At his hearing before the IJ, Notash explained that, when completing his customs declaration form, he had left a line relating to foreign goods blank because he was not sure how to declare the items. Customs officials thought that he was attempting to avoid payment of duty on the goods and charged him under 18 U.S.C. § 542. Notash, however, paid the duty and received the items back.

Notash thus argued that his conviction was not for a crime involving moral turpitude. He contended that, although crimes involving fraud generally are considered to involve moral turpitude, crimes involving false statements are not categorically considered to involve moral turpitude. He further argued that, unlike cases involving moral turpitude, his offense did not involve "clear deceit" and an attempt to obtain a property interest to which he was not entitled.

The IJ rejected Notash's arguments. The IJ stated that conviction under § 542 required an attempt to "deprive the United States of revenue by fraud or false statement or engage in a willful act or omission by which the United States may be deprived of lawful duties." Reasoning that "[f]raud and maliciousness are inherent in these offenses," the IJ concluded that Notash's conviction was a crime involving moral turpitude because "[e]vil intent is the very essence of moral turpitude." The IJ accordingly concluded that Notash was removable. The BIA affirmed without opinion, pursuant to 8 C.F.R. § 1003.1. Notash filed a timely petition for review.

JURISDICTION

Our jurisdiction rests on INA § 242, 8 U.S.C. § 1252. Section 1252(a)(2)(C) limits this court's jurisdiction over petitions for review of final orders of removal based on certain enumerated crimes. It provides, in part, that,

except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.

8 U.S.C. § 1252(a)(2)(C). Subparagraph (D) was added in May 2005 by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231. It provides, in part, that the limits on judicial review found in subparagraph (C) do not preclude "review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." 8 U.S.C. § 1252(a)(2)(D).

The determination of whether an offense is a crime involving moral turpitude is a question of law and accordingly is not subject to the jurisdiction-stripping provision of § 1252(a)(2)(C). See Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005), (stating that "[w]hether a state statutory crime necessarily involves moral turpitude is a question of law, subject to de novo review"), cert. denied, ___ U.S. ___, 126 S.Ct. 346, ___ L.Ed.2d ___ (2005); Goldeshtein v. INS, 8 F.3d 645, 647 n. 4 (9th Cir.1993) (stating that "[w]hether a statute defines a crime involving moral turpitude is a question of law"). Thus, we have jurisdiction over Notash's petition for review under INA § 242(b)(1), 8 U.S.C. § 1252(b)(1).

STANDARD OF REVIEW

Because the BIA affirmed the decision of the IJ without opinion, we review the decision of the IJ. Ndom v. Ashcroft, 384 F.3d 743, 750 (9th Cir.2004). "`The question of whether a conviction under federal law is a deportable offense is reviewed de novo.'" Randhawa v. Ashcroft, 298 F.3d 1148, 1151 (9th Cir.2002) (quoting Albillo-Figueroa v. INS, 221 F.3d 1070, 1072 (9th Cir.2000)).

DISCUSSION

I.

The Immigration and Naturalization Service ("INS")² contends that Notash failed to raise below the issue he raises in his petition for review and that he accordingly has waived the issue. Generally, we lack jurisdiction over claims that the petitioner fails to present to the IJ or the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004) (discussing the requirement of administrative exhaustion found in 8 U.S.C. § 1252(d)). However, the INS' contention, as well as its complete failure to address Notash's arguments on the merits, is difficult to understand. Notash argued before the IJ that, although he admitted the factual allegations of the charge, the crime did not involve moral turpitude. He also argued to the BIA that his crime did not involve moral turpitude.

The INS contends that the IJ found that Notash was convicted under the first paragraph of 18 U.S.C. § 542 and that Notash did not challenge that finding below. Notash does argue that the IJ should have considered the second paragraph of the statute. He also argues, however, as he did before the IJ and the BIA, that crimes involving false statements are not categorically crimes involving moral turpitude. He has not waived the issue; he raised it sufficiently below. We therefore address the merits of his claim.

II.

INA § 237 defines classes of removable aliens and makes removable an alien who "is convicted of a crime involving moral turpitude within five years ... after the date of admission" and "is convicted of a crime for which a sentence of one year or longer may be imposed." 8 U.S.C. § 1227(a)(2)(A)(i). In determining whether a conviction constitutes a removable offense, we apply the categorical approach, looking only to the statutory definition of the offense. Tokatly v. Ashcroft, 371 F.3d 613, 620(9th Cir.2004). If it is not clear from the statutory definition whether the offense is a qualifying offense, we apply the modified categorical approach, in which we "may look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction." Id. Those documents include "`the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment.'" Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.2004) (quoting Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003)); cf. Shepard v. United States, ___ U.S. ___, ___, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005) (holding that a sentencing court may look only to the charging document, the plea agreement, and the plea colloquy in determining whether a guilty plea to burglary constituted a predicate offense for purposes of the Armed Career Criminal Act). If the record of conviction does not establish that the offense is a qualifying offense, the government has failed to meet its burden, and the offense may not be used as a basis for removal. Ferreira, 390 F.3d at 1095; Tokatly, 371 F.3d at 620-21.

III.

Notash was convicted under 18 U.S.C. § 542, which provides, in pertinent part:

Whoever enters or introduces, or attempts to enter or introduce, into the commerce of the United States any imported merchandise by means of any fraudulent or false invoice, declaration, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance, or makes any false statement in any declaration without reasonable cause to believe the truth of such statement, or procures the making of any such false statement as to any matter material thereto without reasonable cause to believe the truth of such statement, whether or not the United States shall or may be deprived of any lawful duties; or

Whoever is guilty of any willful act or omission whereby the United States shall or may be deprived of any lawful duties accruing upon merchandise embraced or referred to in such invoice, declaration, affidavit, letter, paper, or statement, or affected by such act or omission —

Shall be fined for each offense under this title or imprisoned not more than two years, or both.

18 U.S.C. § 542.

The first paragraph of the statute criminalizes certain false or fraudulent statements, without regard to whether those statements will result in a loss of revenue to the United States. By contrast, the second paragraph criminalizes "any willful act or omission" that may deprive the United States of revenue, whether or not those acts are false or fraudulent....